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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ROBERT M. KRUTKO, : 

 : Case No. 2:11-CV-610 

 Plaintiff, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge King 

FRANKLIN COUNTY, OHIO, et al., : 

 : 

 Defendants. : 

OPINION & ORDER 

This matter is before the Court on the following motions: the Motion in Limine of 

Defendants Hatzer, Leonard, Turner, Penix, Harrow, and Koller to exclude Plaintiff’s witness, 

Barbara Scanlon, and certain exhibits (Doc. 73); Defendants’ Motion in Limine to exclude 

evidence of medical diagnosis, injuries, medical causation, permanent injury, lost business 

income or any other claim of similar damages based on Plaintiff Robert M. Krutko’s failure to 

identify any expert witnesses (Doc. 63); and Defendants’ Objection under Rule 26(a)(3)(B) to 

certain Plaintiff exhibits. (Doc. 73 at 6.) For the reasons below, Defendants’ Motion in Limine

to exclude Barbara Scanlon and certain exhibits is GRANTED in part and DENIED in part; 

Defendants’ Motion in Limine to exclude evidence of medical diagnosis, injuries, medical 

causation, permanent injury, lost business income or any other claim of similar damages is 

DENIED; and Defendants’ Rule 26(a)(3)(B) Objection is SUSTAINED. 

I. BACKGROUND 

This case arises from an incident that allegedly took place at the Franklin County 

Corrections Center II (“FCCCII”) while Plaintiff was incarcerated there in November 2009. 

Plaintiff asserts that on one of the days he was being held in “the Hole,” a temporary holding cell 

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designed as a negative air flow space for the purposes of infectious disease control, the toilet in 

the cell began to overflow with sewage and human excrement. (Doc. 38 at 4.) Plaintiff was 

asleep on the floor of the cell and was awakened by the shouts of his cell mates but he was 

quickly covered in sewage. (Id.) Plaintiff alleges that the six Deputies who are Defendants in 

this case came to the cell door several times and laughed, cursed, and insulted the three inmates. 

(Doc. 30 at ¶ 26; Doc. 38 at 4.) He further claims that the Deputies did not release him from the 

cell for 25 minutes following the overflow and that he was subsequently transferred to another 

cell that smelled of excrement. (Doc. 30 at ¶¶ 28-29; Doc. 38 at 4.) Finally, Plaintiff alleges that 

he was transferred to the medical department where he was denied soap and permission to 

shower for five or sick days. (Doc. 38 at 5.) 

Plaintiff brought claims against the six Deputies under 42 U.S.C. § 1983 for “violation of 

Plaintiff’s constitutional rights,” as well as state-law claims for negligence and intentional 

infliction of emotional distress. (Second Am. Compl., Doc. 30 at 5-8.) He seeks compensatory 

damages, punitive damages, and attorney fees and costs. (Id. at 9.) 

II. LEGAL STANDARDS 

A. Motions in Limine

Motions in limine allow the Court to rule on the admissibility of evidence in advance of 

trial to expedite proceedings and give the parties advance notice of the evidence they may not 

rely upon at trial. Bennett v. Bd. of Educ. of Washington Cnty. Joint Vocational Sch. Dist., C2-

08-CV-0663, 2011 WL 4753414, at * 1 (S.D. Ohio Oct. 7, 2011) (citing Jonasson v. Lutheran 

Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997)). To prevail on a motion in limine, the 

movant must show that the evidence is clearly inadmissible. Id. If the movant fails to meet this 

high standard, a Court should defer evidentiary rulings so that questions of foundation, 

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relevancy, and potential prejudice may be resolved in the context of trial. See Ind. Ins. Co. v. 

Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). Whether or not to grant a motion in 

limine is within the discretion of a trial court. Delay v. Rosenthal Collins Grp., LLC, 2:07-CV568, 2012 WL 5878873, *2 (S.D. Ohio Nov. 21, 2012) (citing Branham v. Thomas Cooley Law 

Sch., 689 F.3d 558, 560 (6th Cir.2012)). The Court may reconsider the admissibility of the 

evidence, however, and even change its ruling on a motion in limine, “as the proceedings give 

context to the pretrial objections.” Bennett, 2011 WL 4753414, at * 1 (citing Black v. Columbus 

Pub. Sch., No. 2:96-CV-326, 2007 WL 2713873, at *2 (S.D. Ohio Sept. 17, 2007)). 

B. Federal Rules of Evidence 701 and 702 

Under Rule 701, if a witness is not testifying as an expert, opinion testimony is limited to 

that testimony that is: “(a) rationally based on the witness’s perception; (b) helpful to clearly 

understanding the witness’s testimony or to determining a fact in issue; and (c) not based on 

scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. 

Evid. 701. 

Under Rule 702, an expert’s opinion is admissible, by the discretion of the trial court, if: 

(1) the expert is qualified as such by knowledge, skill, experience, training, or education; (2) the 

testimony is relevant, meaning it will assist the trier of fact to understand the evidence or to 

determine a fact in issue; and (3) the testimony is reliable, meaning it is based on sufficient facts 

or data, is the product of reliable principles and methods, and the witness has applied the 

principles and methods reliably to the facts of the case. In re Scrap Metal Antitrust Litig., 527 

F.3d 517, 528-29 (6th Cir. 2008). 

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III. ANALYSIS 

A. Defendants’ Motion to Exclude Barbara Scanlon and Certain Exhibits 

1. Ms. Scanlon’s Testimony 

Plaintiff’s witness list indicates that he intends to call Barbara Scanlon as a non-expert 

witness. (Doc. 70 at 2.) Ms. Scanlon served as Plaintiff’s counselor following the incident at 

FCCCII. Plaintiff states that she will provide details concerning the treatment Plaintiff received 

after the incident and will “detail the fact that the Plaintiff sought treatment for post-traumatic 

stress disorder due to the incident described in the Complaint.” (Id.) Defendants argue that Ms. 

Scanlon should be barred from testifying on two grounds: first, because she was not disclosed to 

Defendants until January 13, 2016, and second, because any testimony relative to medical 

diagnosis or treatment would be inadmissible under Rules 701 and 702. 

Under Federal Rule of Civil Procedure 37(c)(1), if a party “fails to provide information or 

identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that 

information or witness to supply evidence . . . at a trial, unless the failure was substantially 

justified or is harmless.” In turn, Rule 26(a) requires that a party must, without awaiting a 

discovery request, provide to the other parties “the name and, if known, the address and 

telephone number of each individual likely to have discoverable information—along with the 

subjects of that information—that the disclosing party may use to support its claims or defenses.” 

Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 26(e) requires a party who has made a disclosure under Rule 

26(a) to “supplement or correct its disclosure or response . . . in a timely manner if the party 

learns that in some material respect the disclosure or response is incomplete or incorrect, and if 

the additional or corrective information has not otherwise been made known to the other parties 

during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1). 

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 It is undisputed that Plaintiff did not disclose Ms. Scanlon as a witness until January 13, 

2016. Plaintiff cannot show that his failure to disclose this information was substantially 

justified or harmless. The Sixth Circuit has relied on the advisory committee’s note to Rule 

37(c) in holding that harmless is defined in this context as “an honest mistake on the part of a 

party coupled with sufficient knowledge on the part of the other party.” Sommer v. Davis, 317 

F.3d 686, 692 (6th Cir. 2003) (quoting Vance v. United States, No. 98-5488, 1999 WL 455435, 

at *5 (6th Cir. June 25, 1999) (unpublished table decision)). Plaintiff bears the burden to prove 

harmlessness. Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 

2003). Nothing here suggests that the failure to disclose Ms. Scanlon as a witness was an honest 

mistake. Since Ms. Scanlon was apparently Plaintiff’s treating health professional, he would 

have been aware well in advance of trial of both her identity and the information to which she 

would testify. Nor is there any indication that Defendants already “have sufficient knowledge of 

[her] or [her] opinions.”1

 Sommer, 317 F.3d at 692. Indeed, as Defendants point out, even on 

the January 13, 2016 witness list, Plaintiff only vaguely identifies the topic area to which Ms. 

Scanlon would testify at trial. (See Doc. 70 at 2 (“She can provide details concerning the 

treatment which the Plaintiff has received. She can also detail the fact that the Plaintiff sought 

treatment for post-traumatic stress disorder due to the incident described in the Complaint.”).) 

Under Rule 37(c)(1), “[i]n addition to or instead of [the] sanction” of excluding Ms. 

Scanlon as a witness at trial, the Court has the discretion to “order payment of the reasonable 

 

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 Plaintiff’s initial disclosures included “staff” from Netcare Access Counseling Center and 

North Community Counseling Center. At a status conference on February 4, 2016, Plaintiff 

informed the Court that Ms. Scanlon worked as a counselor for North Community Counseling 

Center. The disclosure of “staff” from North Community Counseling Center does not constitute 

compliance with Rule 26, and Plaintiff’s non-compliance is not harmless, because Defendants 

have not yet had an opportunity to depose Ms. Scanlon or otherwise gain knowledge of her 

opinions. 

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expenses, including attorney’s fees, caused by the failure.” Fed. R. Civ. P. 37(c)(1)(A). Because 

the Court does not wish to impose an overly harsh penalty on Plaintiff for his counsel’s mistake, 

the Court will allow Ms. Scanlon to testify at trial, but only on the condition that Plaintiff make 

Ms. Scanlon available for deposition at a time convenient to Defendant’s counsel during the 

week of February 8-12, 2016. Plaintiff’s counsel will pay the costs associated with the 

deposition, including ordering an expedited transcript of the proceeding. Plaintiff’s counsel will 

also make all of Ms. Scanlon’s relevant records from North Community Counseling Center 

available to Defendant’s counsel at least 24 hours before the deposition takes place. 

The Court DENIES Defendants’ Motion in Limine to exclude Ms. Scanlon’s testimony at 

trial. If Plaintiff’s counsel fails to comply with any part of the Court’s order to make Ms. 

Scanlon available to be deposed by Defendants, the Court will exclude her testimony at trial 

because to do otherwise would be unfairly prejudicial to Defendants. 

2. Exhibits 4-8 and 12 

As with witness disclosures, Plaintiff had a duty under Rule 26(a) to disclose to 

Defendants “a copy—or a description by category and location—of all documents, electronically 

stored information, and tangible things that the disclosing party has in its possession, custody, or 

control and may use to support its claims or defenses, unless the use would be solely for 

impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(ii). Plaintiff’s initial disclosures show that Plaintiff 

identified the following documents: (1) documents related to the physical medical history of 

Plaintiff, including reports, tests, and evaluations from the dates listed in the complaint; (2) 

documents related to the mental and emotional medical history of Plaintiff, including reports 

tests, and evaluations from the dates listed in the complaint; and (3) documents identifying the 

sewage problems at FCCCII from 2006 to 2011. (Doc. 73-1 at 4.) Plaintiff never supplemented 

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his initial disclosures. Plaintiff’s exhibit list, submitted on January 13, 2016, includes several 

documents that clearly fall outside of these three categories of documents: records from the 

Social Security Administration showing that Plaintiff is receiving Social Security Disability 

Insurance; a January 18, 2007 purchase order for a boat totaling $200,660.00; a United States 

Coast Guard Certificate of Documentation for the vessel Sundancer; a June 22, 2005 bill of sale 

for the vessel Sundancer; a May 29, 2005 income and expense worksheet; and income 

statements for Plaintiff. (Doc. 71 ¶¶ 4-8, 12.) 

Plaintiff offers no argument that this tardy disclosure of documents—most of them dated 

many years ago—is substantially justified or harmless. Rather, he states that Defendants have 

never sent a discovery request or conducted a deposition throughout the course of the five-and-ahalf years of the litigation, (Doc. 74 at 3), which is immaterial because the disclosure 

requirements of Rule 26 apply regardless of whether a party has received a discovery request. 

See Fed. R. Civ. P. 26(a)(1)(A). Plaintiff further argues that the language in his initial 

disclosures included a submission of “damages for [Plaintiff’s] loss of ability to work, emotional 

damages, and the cost of continued counseling.” (Doc. 74 at 4.) But this request for damages 

does not satisfy the requirement of Rule 26 that a copy of documents or a description by category 

and location of such documents be disclosed to the opposing party. See Fed. R. Civ. P. 

26(a)(1)(A)(ii). Plaintiff has again failed to comply with Rule 26. 

Plaintiff also avers that he disclosed to Defendants during the parties’ 2012 initial 

mediation that Plaintiff was receiving Social Security Disability Insurance and suffered from 

post-traumatic stress disorder (“PTSD”) and severe depression. (Doc. 74 at 3.) But Defendants 

claim that they had no knowledge of these documents, and Plaintiff has introduced no evidence 

to the contrary and, therefore, cannot meet his burden to show that the failure to disclose was 

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substantially justified or harmless. See Roberts, 325 F.3d at 782; Fed R. Civ. P. 37(c)(1). The 

Court GRANTS Defendants’ Motion in Limine to exclude Documents 4-8 and 12 on Plaintiff’s 

exhibit list. 

B. Defendants’ Motion to Exclude Medical Evidence and Damages 

Plaintiff has identified no expert witnesses that he intends to call at trial. His Second 

Amended Complaint, however, alleges that he has been diagnosed with PTSD and severe 

depression as a result of his experience at FCCCII. (Doc. 30 at ¶ 37.) He also alleges other 

injuries such as hepatic cysts and a pulmonary lesion “which may or may not be related to his 

time in” FCCCII. (Id. at ¶ 39.) Finally, he seeks damages for severe emotional distress. (Id. at ¶ 

72.) Defendant contends that because Plaintiff plans to offer no expert witnesses, he cannot 

establish either his medical diagnosis or a causal connection between the incident at FCCCII and 

the medical diagnosis. (Doc. 63 at 2.) 

Plaintiff has stated that he intends to call Ms. Scanlon as a treating medical professional, 

but not an expert witness. The Sixth Circuit has held that an expert report “is not required when 

a treating physician testifies within a permissive core on issues pertaining to treatment, based on 

what he or she learned through actual treatment and from the plaintiff’s records up to and 

including that treatment.” Fielden v. CSX Transp., Inc., 482 F.3d 866, 871 (6th Cir. 2007). Ms. 

Scanlon may testify to facts within her personal knowledge under Federal Rule of Evidence 701. 

Because she is a fact witness and not an expert witness, however, she may not testify “based on 

scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. 

Evid. 701. If a treating physician testifies as a non-expert, the Sixth Circuit has generally 

precluded such witnesses from testifying to causation if their conclusions regarding causation 

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were rendered “in anticipation of litigation.” See Fielden, 482 F.3d at 871; Mohney v. USA 

Hockey, Inc., 138 F. App’x 804, 811 (6th Cir. 2005). 

Here, because Ms. Scanlon has not yet been deposed, the Court is unable to determine 

whether she intends to testify regarding a a medical diagnosis or causation, and if so, whether 

such conclusions were rendered in anticipation of litigation. Therefore, the Court will deny 

Defendants’ motion to exclude evidence of medical diagnosis injuries, medical causation, 

permanent injury, and lost business income at this time. After Ms. Scanlon’s deposition is 

conducted, Defendants may renew their motion for the Court’s consideration. 

Defendants also contend that Plaintiff himself should be precluded from offering 

testimony on his own behalf to establish a medical diagnosis and a causal connection between 

the incident at FCCCII and Plaintiff’s injuries. The Court agrees. PTSD, depression, hepatic 

cysts, and pulmonary lesions are conditions whose diagnoses would require specialized medical 

knowledge or experience. See Tomlinson v. Collins, No. 2:09-cv-125, 2011 WL 478835, at *8 

(S.D. Ohio Feb. 7, 2011) (excluding lay witness testimony regarding the severity of pain 

experienced by a plaintiff relative to a person suffering from appendicitis, gall bladder, or a heart 

attack because such testimony would not be within the common observation of laypersons). A 

plaintiff “may testify regarding [his] symptoms (and when they began), but may not testify to 

causation.” Kovacic v. Ponstingle, No. 1:05-cv-2746, 2014 4715859, at *2 (N.D. Ohio Sept. 22, 

2014) (prohibiting plaintiffs from testifying to mental health diagnoses and conditions, or mental 

health symptoms they were experiencing). See also Scott v. City of Dayton, No. C-3-04-420, 

2007 WL 4287869, at *2 (S.D. Ohio Dec. 6, 2007) (“[W]ithout expert testimony, Plaintiff has no 

admissible evidence that the alleged [constitutional violation] was the proximate cause of his 

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potential inability to reproduce, his loss of sexual function and any permanent injuries allegedly 

stemming from the removal of his testicle.”). 

Defendants further argue that Plaintiff should be precluded from introducing any 

evidence or testimony regarding mental or emotional injuries because the Prison Litigation 

Reform Act provides: 

No federal civil action may be brought by a prisoner confined in a jail, prison, or other 

correctional facility, for mental or emotional injury suffered while in custody without a 

prior showing of physical injury or the commission of a sexual act. 

42 U.S.C. § 1997e(e). “Prisoner” is defined in this subsection of the statute as “any 

person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or 

adjudicated delinquent for, violations of criminal law or the terms and conditions of parole 

probation, pretrial release or diversionary program.” 42 U.S.C. § 1997e(h). Defendants’ 

argument fails, however, because § 1997e(e) does not apply to a plaintiff who was not a prisoner 

at the time he initiated a suit. The Sixth Circuit has not had occasion to rule directly on this 

question, but in Cox v. Mayer, in interpreting the definition of “prisoner” in § 1997e(h) as it 

applies to the exhaustion requirement in § 1997e(a), the court explained that a “natural reading of 

the statute suggests that its applications requires consideration of three simple questions. First, is 

plaintiff ‘a prisoner confined in [a] jail, prison, or other correctional facility?’ If not the statute is 

inapplicable.” 332 F.3d 422, 424 (6th Cir. 2003). See also Napier v. Laurel Cnty., Ky., 636 F.3d 

218, 221 n.1 (6th Cir. 2011) (noting that the only question about whether the PLRA applies to a 

plaintiff is whether the plaintiff, at the time of filing, is a prisoner confined in a jail, prison, or 

other correctional facility). 

The Seventh Circuit has held that § 1997e(e) does not apply to plaintiffs who were not 

prisoners at the time they filed suit. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) 

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(holding that the plain text of § 1997e(e) precludes its application to a parolee who was no longer 

incarcerated). And other circuits who have addressed whether the definition of “prisoner” in 

§ 1997(h) includes plaintiffs who were no longer incarcerated at the time they commenced the 

lawsuit have also agreed that it does not. See, e.g., Norton v. City of Marietta, Okla., 432 F.3d 

1145, 1150 (10th Cir. 2005) (“In light of the PLRA’s plain language, the other circuits to have 

addressed the issue have unanimously held that it is the plaintiff’s status at the time he files suit 

that determines whether § 1997e(a)’s exhaustion provision applies.”); Greig v. Goord, 169 F.3d 

165, 167 (2d Cir. 1999) (per curiam) (same). See also Scheid v. Penrose, No. 2:13-cv-1270, 

2015 WL 1875391, at *2 (Apr. 23, 2015) (holding that a plaintiff was not a prisoner as defined 

by the PLRA where he was released from custody before filing his lawsuit). Because Krutko 

filed his complaint after he was released from custody, § 1997e(e) is inapplicable to this suit. 

Defendant’s Motion in Limine is DENIED. After Ms. Scanlon is deposed, Defendants 

may renew their motion to exclude any evidence regarding claimed medical diagnosis, 

permanent injuries or disability, and lost profits and loss of business income. The Court will not 

exclude evidence regarding mental or emotional injury. 

C. Defendants’ Objection to Certain Plaintiff Exhibits under Rule 26(a)(3)(B) 

 Finally, Defendants object to two of Plaintiff’s exhibits under Rule 26(a)(3)(B), which 

requires a party to file objections to the use of certain exhibits at trial within 14 days of the 

opposing party’s pretrial disclosures of such exhibits. Defendants assert that Plaintiff should be 

barred from introducing “North Community Counseling Records from the date of release from 

2010 through the present” and “Netcare Medical Corporation Medical Records.”2

 (See Doc. 71 

 

2

 Plaintiff’s counsel represented to the Court at a February 4, 2016 status conference that he 

believes that North Community Counseling Center and Netcare Medical Corporation are actually 

the same facility that has done business under two different names during different time periods. 

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¶¶ 2-3.) Defendants are correct that these records are not self-authenticating under Rule 902 and, 

therefore, must be authenticated as prescribed under Rule 901. Plaintiff has not offered any 

witnesses with knowledge who will be able to authenticate these records. See Fed. R. Evid. 

901(b)(1). In response, Plaintiff states that he would be able to identify his own Social Security 

records and documentation of his income prior to the incident at FCCCII. But this is 

unresponsive to Defendants’ objection. The Court has already stated its reasons for excluding 

the Social Security and income documents that were not previously disclosed to Defendants. But 

Plaintiff offers no argument as to how the treatment records will be authenticated at trial. At a 

status conference before the Court on February 4, 2016, Plaintiff’s counsel indicated that he had 

these records in his possession but that none of the records pertained to the treatment Ms. 

Scanlon has provided to Plaintiff. Rather, they are the records of other treating professionals. 

Therefore, the Court surmises that Ms. Scanlon, if she testifies at trial, will not be in a position to 

authenticate these records, although she may, of course, be able to authenticate her own records. 

Because no witnesses will be able to authenticate the records of other treating providers under 

Rule 901, and since Plaintiff offers no argument to the contrary, the Court SUSTAINS

Defendants’ Objection to the introduction at trial of any North Community Counseling records 

and Netcare Medical Corporation Medical records not pertaining to Ms. Scanlon’s treatment of 

Plaintiff. 

IV. CONCLUSION 

For the reasons detailed above, the Court GRANTS in part and DENIES in part

Defendants’ Motion in Limine to exclude Plaintiff’s witness, Barbara Scanlon, and certain 

Plaintiff exhibits (Doc. 73); DENIES Defendants’ Motion in Limine to exclude evidence of 

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medical diagnosis, injuries, medical causation, permanent injury, lost business income, or any 

other claim of similar damages (Doc. 63); and SUSTAINS Defendants’ Rule 26(a)(3)(B) 

Objection to certain Plaintiff exhibits. (Doc. 73 at 6.) 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

DATED: February 5, 2016 

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